Dodge v. Rogers

• Decision Date: 01 January 1864
• Parties: OSSIAN E. DODGE vs. HIRAM ROGERS.
• Court: Minnesota Supreme Court

Page 209

9 Minn. 209

OSSIAN E. DODGE vs. HIRAM ROGERS.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

Points and authorities for appellant: —

The district judge erred in refusing the instructions asked by plaintiff's counsel and in the instructions given to the jury. The contract under which the defendant claimed title was a written executory contract. No title passed by it from plaintiff to defendant. By this contract the defendant obtained a right to the piano upon and only upon performance of the contract. Services rendered upon the contract, but short of performance, might entitle the defendant to just compensation from the plaintiff for such services; but they would not entitle him to the piano — much less actually pass the title in it from plaintiff to defendant. The instructions, therefore, asked by the plaintiff should have been given.

Lorenzo Allis, for appellant.

Smith & Gilman, and Brisbin & Warner, for respondent.

MCMILLAN, J.

This is an action brought by the plaintiff to recover one piano. The complaint avers a wrongful taking and detention of the property, and a refusal by the defendant to deliver it, although thereto often requested. The defendant in his answer denies the wrongful taking and detention, and denies that the piano was the property of the plaintiff, and avers ownership in himself. The cause was tried by jury in the court below, and a verdict was given for the defendant. The only exceptions which appear in the case are those taken to the charge of the court, and the refusal of the court to charge in accordance with the requests submitted by the plaintiff. These we shall consider.

The second request submitted by the plaintiff was as follows: "Under the pleadings it is incumbent on the defendant to prove that the title of the defendant is an absolute and perfect title, otherwise his defense fails; no interest or claim in the piano on the part of this defendant, short of absolute ownership, will constitute any defense in this action." Upon this request the court charged as follows: "Plaintiff's second request is also correct, in so far as this, that the issue relates to the title, and that defendant must satisfy you by a fair preponderance of evidence that he is the owner. The language, complete and perfect title, means no more than this. When defendant makes out a title, it is a complete and perfect one of course. Defendant claims no lien or partial interest in the piano; he claims to own it, and to have owned it from the time of the contract." We see no error in this portion of the charge. Although not in the exact language of the request it is a substantial compliance with it. The jury are clearly informed that no lien or partial interest in the property is made by the defendant — that the only issue before them on this branch of the case is that of general ownership, which is substantially the request made. We cannot suppose the jury misapprehended the point.

The third request of the plaintiff is in the following language: "Under the written contract in evidence no title to this piano passed to the defendant until he, the defendant, had performed his part thereof. By the terms of this writing the defendant, on his part, was to contract for all material to put up house, paying part in lots and pianos, when possible, using his own judgment, as if for himself. It is for the jury to determine from the evidence in this case whether the defendant has thus contracted and performed his part." The following is the charge of the court in response to this request: "Defendant claims under his contract, and if he has performed it, in the language of defendant's first request, he is entitled to a verdict. What was the contract? Whether the defendant has performed it is for the jury to say; its construction is for the court. Thus qualified, plaintiff's third request is correct." As we apprehend the language, the third request of the plaintiff was given to the jury, with the single qualification, that the construction of the contract was matter of law for the court, and the question of performance under it, so construed, was a fact for the jury to determine. In this there was no error.

The fourth and fifth requests we shall consider together. They are as follows: "The performance on the part of the defendant must have been complete, otherwise he cannot recover in this action. No partial performance, on the part of defendant, of this contract, would entitle the defendant to this piano, although it might entitle him to recover of plaintiff what his services were worth in an action for that purpose." "The jury must distinguish in this case between negotiations or a treaty for a contract, and the contract itself. These negotiations, however extensive and laborious, carried on by defendant under this written agreement, which never resulted or terminated in any contract or contracts, would not be a performance of this agreement on his part. In such case he might be entitled, in a proper action, brought for that purpose, to recover of plaintiff whatever his services were reasonably worth, but he would not be entitled to this piano."

The charge...